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09:0591(67)CA - IRS and NTEU and OPM -- 1982 FLRAdec CA

[ v09 p591 ] 09:0591(67)CA
The decision of the Authority follows:

9 FLRA No. 67
INTERNAL REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case Nos. 3-CA-331
3-CA-1231
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS. THE
RESPONDENT, THE CHARGING PARTY, AND THE INTERVENOR FILED EXCEPTIONS TO
THE JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS, AS MODIFIED BELOW.
IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE /1/ WHEN IT DENIED
PAYMENT OF PER DIEM AND TRAVEL EXPENSES INCURRED SINCE JANUARY 11, 1979
TO ALL EMPLOYEES WHO WERE ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE WHILE REPRESENTING THE UNION IN THE NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT, AND FOR DENYING ITS EMPLOYEES OFFICIAL TIME
INCURRED IN CONNECTION WITH TRAVEL TO AND FROM SUCH SESSIONS. SEE
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF
THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40 (1980), ENFORCED
SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL LABOR
RELATIONS AUTHORITY, NO. 80-7673 (9TH CIR. MAR. 22, 1982). SEE ALSO
INTERPRETATION AND GUIDANCE, 2 FLRA 265 (1979). /2/ HOWEVER, THE
JUDGE'S RECOMMENDED ORDER MUST BE MODIFIED TO THE EXTENT AND FOR THE
REASONS NOTED BELOW. /3/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE SERVICE, WASHINGTON,
D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES, AS WELL AS OFFICIAL TIME, TO JUDY OSLAGER,
JEAN WHITENER, AND DONALD GEIGER, OR TO ANY OTHER EMPLOYEE, AS A RESULT
OF THEIR PARTICIPATION PURSUANT TO SECTION 7131(A) OF THE STATUTE AS THE
DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING THE NEGOTIATION
OF A NATIONWIDE MASTER COLLECTIVE BARGAINING AGREEMENT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PAY JUDY OSLAGER, JEAN WHITENER, AND DONALD GEIGER, AND ALL OTHER
EMPLOYEES WHO REPRESENTED THE NATIONAL TREASURY EMPLOYEES UNION IN
NEGOTIATIONS FOR A NATIONWIDE MASTER COLLECTIVE BARGAINING AGREEMENT
SINCE JANUARY 11, 1979, FOR THEIR TRAVEL AND PER DIEM EXPENSES, AS WELL
AS THE OFFICIAL TIME, INCURRED AS A RESULT OF THEIR PARTICIPATION,
PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS THE DULY DESIGNATED
REPRESENTATIVES OF THE NATIONAL TREASURY EMPLOYEES UNION DURING SUCH
NEGOTIATIONS.
(B) POST AT ALL OF ITS FACILITIES, WHERE BARGAINING UNIT EMPLOYEES
ARE LOCATED, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY
THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE COMMISSIONER AND SHALL BE POSTED AND MAINTAINED
FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE COMMISSIONER SHALL TAKE REASONABLE STEPS TO
ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JULY 21, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL AND REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES, AS WELL AS OFFICIAL TIME, TO JUDY OSLAGER,
JEAN WHITENER, AND DONALD GEIGER, OR TO ANY OTHER EMPLOYEE, AS A RESULT
OF THEIR PARTICIPATION PURSUANT TO SECTION 7131(A) OF THE STATUTE AS THE
DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING THE NEGOTIATION
OF A NATIONWIDE MASTER COLLECTIVE BARGAINING AGREEMENT. WE WILL NOT, IN
ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN, OR COERCE OUR
EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. WE
WILL PAY EMPLOYEES JUDY OSLAGER, JEAN WHITENER, AND DONALD GEIGER, AND
ALL OTHER EMPLOYEES WHO REPRESENTED THE NATIONAL TREASURY EMPLOYEES
UNION IN NEGOTIATIONS FOR A NATIONWIDE MASTER COLLECTIVE BARGAINING
AGREEMENT SINCE JANUARY 11, 1979, FOR THEIR TRAVEL AND PER DIEM
EXPENSES, AS WELL AS THE OFFICIAL TIME, INCURRED AS A RESULT OF THEIR
PARTICIPATION PURSUANT TO SECTION 7131(A) OF THE STATUTE, AS THE DULY
DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY EMPLOYEES UNION
DURING SUCH NEGOTIATIONS.
(AGENCY OR ACTIVITY)
DATED: . . . BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
CONSECUTIVE DAYS FROM THE DATE OF THIS POSTING AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY
QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE WITH ITS PROVISIONS,
THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR
RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS: 1111 18TH STREET,
NW., WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE NUMBER IS (202)
653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SUSAN SHINKMAN
DONNA DITULLIO, ESQS.
FOR THE GENERAL COUNSEL
JOHN BUFE, ESQ.
FOR THE CHARGING PARTY
RICHARD J. MIHELCIC
ROGER P. KAPLAN
BRUCE HUTCHINSON KENNEDY, ESQS.
FOR THE RESPONDENT
STUART FOSS
JOHN HELM, ESQS.
FOR THE INTERVENOR
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THESE PROCEEDINGS AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT STATUTE, HEREIN CALLED THE "STATUTE" 5 U.S.C. 7101 ET
SEQ., AS A RESULT OF AMENDED UNFAIR LABOR PRACTICE CHARGES ORIGINALLY
FILED ON JULY 6, 1979 AND JUNE 12, 1980, RESPECTIVELY. THEREAFTER,
COMPLAINTS AND NOTICES OF HEARINGS WERE ISSUED BY THE REGIONAL DIRECTOR,
REGION III ON JUNE 25, 1980 AND AUGUST 14, 1980, RESPECTIVELY.
SUBSEQUENTLY, ON AUGUST 14, 1980, THE REGIONAL DIRECTOR ISSUED AN ORDER
CONSOLIDATING THE CASES. THE CONSOLIDATED COMPLAINT ALLEGES THAT THE
INTERNAL REVENUE SERVICE, HEREIN CALLED THE "RESPONDENT" VIOLATED
SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY FAILING AND REFUSING
TO REIMBURSE NATIONAL TREASURY EMPLOYEE UNION, HEREIN CALLED THE
"UNION", NEGOTIATORS FOR TRAVEL AND PER DIEM EXPENSES INCURRED ON
OFFICIAL TIME WHILE ENGAGED IN NEGOTIATIONS OF A NATIONWIDE MASTER
AGREEMENT AND BY REFUSING TO GRANT OFFICIAL TIME TO UNION NEGOTIATORS
FOR THE PURPOSE OF TRAVELING TO AND/OR FROM COLLECTIVE BARGAINING
SESSIONS DURING REGULAR DUTY HOURS.
IN ITS ANSWER TO 3-CA-331 RESPONDENT ADMITS THAT IT HAS FAILED TO
GRANT ADMINISTRATIVE TIME TO UNION NEGOTIATORS FOR TRAVEL TO AND FROM
BARGAINING SESSIONS AND THAT IT HAS FAILED AND REFUSED TO REIMBURSE
UNION NEGOTIATORS FOR TRAVEL AND PER DIEM EXPENSES INCURRED IN REGARD TO
THE COLLECTIVE-BARGAINING NEGOTIATIONS IN QUESTION. IN CASE NO.
3-CA-1232 RESPONDENT DENIED THE ABOVE-CITED ALLEGATIONS AND DENIED THE
COMMISSION OF ANY UNFAIR LABOR PRACTICES.
A HEARING WAS HELD ON SEPTEMBER 16, 1980, IN WASHINGTON, D.C. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
AND TO INTRODUCE RELEVANT EVIDENCE. POST HEARING BRIEFS WERE TIMELY
FILED AND HAVE BEEN CONSIDERED.
UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND
THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
FINDINGS OF FACT
A. BACKGROUND
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF INTERNAL REVENUE SERVICE
EMPLOYEES NATIONWIDE. THE PARTIES HAVE NEGOTIATED SEVERAL PREVIOUS
COLLECTIVE BARGAINING AGREEMENTS FOR RESPONDENT'S COMPONENTS INCLUDING
CONTRACTS FOR ELEVEN (11) SERVICE CENTERS, FIFTY-SIX (56) DISTRICT
OFFICES, AND, THE RESPONDENT'S NATIONAL OFFICE.
AT THE TIME OF THE HEARING, THE PARTIES HAD BEEN ENGAGED IN NATIONAL
NEGOTIATIONS SINCE JANUARY 11, 1979. BARGAINING SESSIONS TOOK PLACE IN
WASHINGTON, D.C. BY AGREEMENT OF THE PARTIES. DURING THE COURSE OF THE
BARGAINING THE NEGOTIATION TEAMS WERE NORMALLY COMPOSED OF TEN (10)
PERSONS ON EACH SIDE. NEGOTIATION SESSIONS USUALLY WERE FROM MONDAY
THROUGH FRIDAY DURING THE WEEKS THEY WERE HELD AND, WERE NORMALLY HELD
IN TWO-WEEK LONG SESSIONS.
IN A DEPARTMENT OF THE TREASURY MEMORANDUM TO BUREAU HEADS DATED
FEBRUARY 4, 1980, ASSISTANT SECRETARY W. J. MCDONALD DISCUSSED THE ISSUE
OF "TRAVEL AND PER DIEM EXPENSES FOR EMPLOYEE UNION NEGOTIATORS." THE
MEMORANDUM STATED INTER ALIA:
THE INTERNAL REVENUE SERVICE HAS RECEIVED A REQUEST FROM THE NATIONAL
TREASURY EMPLOYEES
UNION FOR PAYMENT OF RETROACTIVE AND ADVANCED TRAVEL AND PER DIEM
EXPENSES IN CONJUNCTION WITH
CURRENT COLLECTIVE BARGAINING NEGOTIATIONS. THE INTERNAL REVENUE
SERVICE PLANS TO REFUSE THE
UNION'S REQUEST FOR PAYMENT, AND IS PREPARED TO LITIGATE THE ISSUE IN
AN UNFAIR LABOR PRACTICE
PROCEEDING. IN ORDER TO ACHIEVE MAXIMUM TREASURY-WIDE COORDINATION
THE OFFICE OF THE GENERAL
COUNSEL HAS RECOMMENDED THAT BUREAUS DECLINE ALL UNION REQUESTS FOR
PAYMENT OF TRAVEL AND PER
DIEM EXPENSES PENDING RESOLUTION OF THE ANTICIPATED INTERNAL REVENUE
SERVICE UNFAIR LABOR
PRACTICE LITIGATION, I.E., UNTIL THE COURT REVIEWS THE MATTER. YOUR
COOPERATION AND SUPPORT
IN THIS MATTER WOULD BE APPRECIATED.
AROUND MARCH 21, 1980, MS. JUDY OSLAGER, AN EMPLOYEE AT RESPONDENT'S
BROOKHAVEN, NEW YORK SERVICE CENTER WHO PARTICIPATED IN THE ABOVE
MENTIONED NATIONAL NEGOTIATIONS SUBMITTED A TRAVEL VOUCHER FOR VARIOUS
TRAVEL RELATED EXPENSES IN CONNECTION WITH THE NATIONAL NEGOTIATIONS FOR
INTERMITTENT TRAVEL PERIODS BETWEEN JANUARY 21, 1979 THROUGH FEBRUARY
15, 1980.
ON MARCH 31, 1980, MS. OSLAGER RECEIVED A MEMORANDUM FROM HER
SUPERVISOR, MR. MANNY BELANSKY INFORMING HER THAT PAYMENT WAS DENIED AND
THAT IT WAS RESPONDENT'S POLICY NOT TO REIMBURSE UNION NEGOTIATORS FOR
EXPENSES RELATING TO THE BARGAINING SESSIONS IN WASHINGTON, D.C. MR.
BELANSKY, ALSO TESTIFIED THAT HE WOULD NOT HAVE AUTHORIZED REIMBURSEMENT
OF THIS VOUCHER UNDER ANY CIRCUMSTANCES-- WHETHER OR NOT THE TRAVEL
VOUCHERS HAD BEEN PROPERLY PREPARED AND SUBMITTED BY MS. OSLAGER BECAUSE
OF RESPONDENT'S STANDING POLICY NOT TO APPROVE TRAVEL VOUCHERS AND PER
DIEM REQUESTS ARISING FROM NEGOTIATIONS WITH THE UNION.
AT TIME OF THE HEARING, MS. OSLAGER HAD NOT RECEIVED PAYMENT FROM
RESPONDENT FOR TRAVEL EXPENDITURES OR PER DIEM ALLOWANCES IN REGARD TO
THE NEGOTIATION SESSIONS ATTENDED BY HER BETWEEN JANUARY 1979 AND
FEBRUARY 1980.
MS. JEAN WHITENER, IS EMPLOYED AT RESPONDENT'S ATLANTA, GEORGIA
SERVICE CENTER AND ON THREE (3) DIFFERENT OCCASIONS IN JULY 1979, MAY
1980 AND JULY 1980 TRAVELLED TO PARTICIPATE IN NEGOTIATION SESSIONS ON
BEHALF THE UNION IN WASHINGTON, D.C. DURING HER REGULAR DUTY HOURS. IN
JULY 1979, MS. WHITENER CONTACTED RESPONDENT'S LABOR RELATIONS OFFICE
REQUESTING AUTHORIZATION OF OFFICIAL TIME FOR TRAVEL DURING REGULAR DUTY
HOURS. THIS REQUEST WAS DENIED AND MS. WHITENER WAS TOLD THAT THE
ISSUE WAS OUT OF THE LOCAL'S CONTROL AND HAD BECOME AN ISSUE OF THE
NATIONAL OFFICE. MS. WHITENER, THEREFORE, TOOK LEAVE WITHOUT PAY TO
TRAVEL TO WASHINGTON, D.C. FOR BARGAINING SESSIONS DURING HER REGULAR
DUTY HOURS. AT THE TIME OF THE HEARING, THE LEAVE WITHOUT PAY HAD NOT
BEEN CONVERTED TO ADMINISTRATIVE LEAVE OR OFFICIAL TIME ON MS.
WHITENER'S LEAVE RECORD.
MS. WHITENER ALSO INCURRED TRAVEL EXPENSES DURING THE NEGOTIATION
SESSIONS ATTENDED BY HER. ON MARCH 20, 1980, MS. WHITENER SUBMITTED
TRAVEL VOUCHERS AND REQUESTS FOR PER DIEM ALLOWANCES FOR TRAVEL PERIODS
BEGINNING JANUARY 21, 1979 THROUGH FEBRUARY 15, 1980 WHEN SHE WAS
ENGAGED IN NEGOTIATIONS TO MR. CLAUDE BURNS OF RESPONDENT'S LABOR
RELATIONS OFFICE. THESE TRAVEL VOUCHERS WERE RETURNED UNPROCESSED ON
THAT SAME DAY. IN A LETTER DATED MARCH 20, 1980, MS. WHITENER WAS TOLD
BY MR. JAMES COSLEY, JR. THAT RESPONDENT'S POSITION WAS NOT TO HONOR ANY
SUCH TRAVEL AND PER DIEM REQUESTS BY UNION REPRESENTATIVES AND THAT THE
POLICY HAD BEEN COMMUNICATED TO THE UNION'S GENERAL COUNSEL ROBERT
TOBIAS ON FEBRUARY 11, 1980. NO OTHER REASON WAS GIVEN FOR REFUSAL TO
REIMBURSE MS. WHITENER FOR TRAVEL EXPENSES.
MS. WHITENER HAS NOT BEEN REIMBURSED FOR TRAVEL EXPENSES OR PER DIEM
FOR THE PERIOD BEGINNING JANUARY 21, 1979 THROUGH FEBRUARY 15, 1980.
UNION REPRESENTATIVE DONALD GEIGER IS EMPLOYED AT RESPONDENT'S
FRESNO, CALIFORNIA SERVICE CENTER. MR. GEIGER HAS BEEN PART OF THE
UNION NEGOTIATION TEAM SINCE JULY 1978. ABOUT MARCH 20, 1980, MR.
GEIGER SUBMITTED TRAVEL VOUCHERS FOR EXPENSES INCURRED SUCH AS AIRFARE,
MEAL AND LODGING FOR TRAVEL PERIODS BEGINNING JANUARY 22, 1979 THROUGH
FEBRUARY 16, 1980, DURING WHICH PERIODS HE WAS ENGAGED IN NATIONAL
NEGOTIATIONS. AROUND MARCH 28, 1980 MR. GEIGER WAS NOTIFIED BY DIVISION
CHIEF BARBARA A. WALSTON THAT THE SUBMITTED VOUCHERS WOULD NOT BE
APPROVED AS THE EXPENSES THEREON WERE INCURRED DURING UNAUTHORIZED
TRAVEL.
MR. GEIGER TESTIFIED THAT HE HAD LEARNED DURING A NEGOTIATION SESSION
IN WASHINGTON, D.C. IN JANUARY 1979 FROM RESPONDENT'S CHIEF NEGOTIATOR
AT THE SESSIONS, IRVING DES ROUCHES THAT RESPONDENT WOULD NOT AUTHORIZE
OFFICIAL TIME FOR TRAVEL TO AND FROM THE BARGAINING SESSIONS FOR UNION
NEGOTIATORS PERFORMED DURING THEIR REGULAR DUTY HOURS NOR WOULD
RESPONDENT REIMBURSE UNION NEGOTIATORS FOR TRAVEL EXPENSES OR AUTHORIZE
PER DIEM ALLOWANCES.
AS WITH THE OTHERS, MR. GEIGER HAS NOT BEEN REIMBURSED BY RESPONDENT
FOR TRAVEL VOUCHERS SUBMITTED IN CONNECTION WITH THE NATIONAL
NEGOTIATION SESSIONS.
DISCUSSION AND CONCLUSIONS
THIS MATTER INVOLVES THE FAILURE AND REFUSAL OF RESPONDENT TO PAY
TRAVEL EXPENSES, PER DIEM AND TRAVEL TIME TO UNION NEGOTIATORS ENGAGED
IN THE BARGAINING OF NATIONWIDE COLLECTIVE BARGAINING AGREEMENTS WITH
RESPONDENT SINCE ON OR ABOUT JANUARY 11, 1979. THE RECORD REVEALS THAT
RESPONDENT REFUSED TO PAY TRAVEL EXPENSES OR TO ALLOW TRAVEL TIME TO
UNION NEGOTIATORS PURSUANT TO A NATIONAL POLICY ESTABLISHED ON FEBRUARY
4, 1980 THE PURPOSE OF WHICH WAS TO CHALLENGE THE VALIDITY OF THE
FEDERAL LABOR RELATIONS AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA
NO. 31 (1979). /4/
THE PARTIES ALL CONCEDE THAT THE RESOLUTION OF THIS MATTER MUST BE
CONTROLLED BY THE INTERPRETATION OF SECTION 7131(A) OF THE STATUTE. /5/
RESPONDENT AND INTERVENOR, NOTWITHSTANDING THE INTERPRETATION AND
GUIDANCE, SUPRA, CONTEND THAT THERE IS NO OBLIGATION UNDER SECTION
7131(A) TO PAY TRAVEL AND PER DIEM EXPENSES INCURRED BY RESPONDENT'S
EMPLOYEES WHILE REPRESENTING THE UNION, THE RECOGNIZED EXCLUSIVE
REPRESENTATIVE, IN THE NEGOTIATION OF THE NATIONAL COLLECTIVE BARGAINING
AGREEMENT INVOLVED HEREIN. ALTHOUGH CERTAINLY AWARE THAT THE AUTHORITY
HAD REAFFIRMED ITS POSITION IN THE INTERPRETATION AND GUIDANCE, SUPRA,
IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT
OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40 (1980) NEITHER
RESPONDENT NOR INTERVENOR MENTIONED THIS DECISION IN BRIEF. IN THAT
CASE, THE AUTHORITY ADOPTED WITHOUT COMMENT THE CONCLUSION OF
ADMINISTRATIVE LAW JUDGE ARRIGO THAT THE RESPONDENT'S:
"FAILURE AND REFUSAL TO PROVIDE (A UNION REPRESENTATIVE) WITH
OFFICIAL TIME AND WHATEVER
TRAVEL AND PER DIEM EXPENSES HE MAY HAVE BEEN ENTITLED TO WERE HE
CONSIDERED TO BE ON OFFICIAL
AGENCY BUSINESS WHILE PERFORMING UNION REPRESENTATIVE DUTIES . . .
(WAS A FAILURE AND REFUSAL)
TO COMPLY WITH SECTION 7131 OF THE STATUTE AND THEREBY VIOLATED
SECTIONS 7116(A)(1) AND (8) OF
THE STATUTE."
THE AUTHORITY HAS THUS SET FORTH ITS POSITION ON SECTION 7131(A) ON
TWO SEPARATE OCCASIONS AND AS AN ADMINISTRATIVE LAW JUDGE, I LIKE JUDGE
ARRIGO, AM COMPELLED TO FOLLOW THESE PRONOUNCEMENTS AND DECISIONS UNTIL
SUCH TIME AS THEY ARE OVERRULED BY HIGHER AUTHORITY.
THEREFORE, AS I VIEW THE MATTER, THE ISSUES FOR MY RESOLUTION ARE
WHETHER (1) THE EMPLOYEES INVOLVED HEREIN WERE ON OFFICIAL AGENCY
BUSINESS WHILE PERFORMING UNION REPRESENTATIONAL DUTIES DURING THE
PERIODS IN QUESTION; (2) WHETHER TRAVEL VOUCHERS WERE SUBMITTED FOR
PAYMENT OR REQUESTS MADE FOR OFFICIAL TIME; (3) AND, WHETHER THESE
EMPLOYEES WERE PAID FOR EXPENSES INCURRED IN PERFORMING AGENCY BUSINESS.
THE RECORD SUPPORTS AND IT IS FOUND THAT ALL THREE ISSUES MUST BE
ANSWERED IN THE AFFIRMATIVE. IN SUM, THE EVIDENCE CLEARLY ESTABLISHES
THAT RESPONDENT ESTABLISHED A NATIONAL POLICY ON FEBRUARY 4, 1980, THE
SPECIFIC PURPOSE OF WHICH WAS TO CHALLENGE THE AUTHORITY'S
INTERPRETATION AND GUIDANCE, SUPRA; THAT THE THREE EMPLOYEES INVOLVED
IN THIS MATTER EACH TRAVELLED TO WASHINGTON, D.C. ON SEVERAL DIFFERENT
OCCASIONS TO ENGAGE IN NEGOTIATIONS CONCERNING A NATIONWIDE AGREEMENT OF
RESPONDENT'S EMPLOYEES; THAT DURING THE NEGOTIATIONS, EMPLOYEE JEAN
WHITENER REQUESTED OFFICIAL TIME TO TRAVEL TO AND FROM NEGOTIATIONS, BUT
WAS DENIED THAT TIME BY RESPONDENT; THAT ABOUT MARCH 20, 1980, THE
THREE EMPLOYEES SUBMITTED TRAVEL VOUCHERS FOR EXPENSES INCURRED IN
CONNECTION WITH NEGOTIATIONS FOR A NATIONWIDE AGREEMENT IN WASHINGTON,
D.C.; AND, FINALLY THAT EMPLOYEE WHITENER'S LEAVE RECORD HAS NEVER BEEN
ADJUSTED TO SHOW OFFICIAL TIME WHEN ENGAGED IN OFFICIAL AGENCY BUSINESS
AND NONE OF THE THREE EMPLOYEES HAS BEEN REIMBURSED FOR EXPENSES
INCURRED WHILE ON OFFICIAL AGENCY BUSINESS BECAUSE OF RESPONDENT'S
NATIONAL POLICY ESTABLISHED FEBRUARY 4, 1980. THE AGENCY POLICY TO DENY
SUCH TRAVEL TIME AND EXPENSES ALSO VIOLATED SECTION 7116(A)(1) AND (5)
OF THE STATUTE. INTERVENOR URGES, AT LEAST, BARGAINING ON THE ISSUE OF
PAYMENT. HOWEVER, THE POLICY OF FEBRUARY 4, 1980 WHICH ANNOUNCED THAT
RESPONDENT'S BUREAUS WERE TO DECLINE PAYMENT UNTIL COURT RESOLUTION OF
THE MATTER CLEARLY PRECLUDES GOOD-FAITH BARGAINING.
THROUGHOUT THE PROCEEDINGS RESPONDENT RAISED NUMEROUS REASONS WHY
SECTION 7131 OF THE STATUTE SHOULD NOT BE CONSTRUED TO OBLIGATE AGENCIES
TO PROVIDE TRAVEL TIME AND TRAVEL EXPENSES TO UNION NEGOTIATORS. TO
ACCEPT ANY OF THESE DEFENSES WOULD REQUIRE A RULING ON MY PART THAT THE
AUTHORITY'S DECISION IS ARBITRARY AND CAPRICIOUS. A REVIEW OF THE
RECORD INDICATES THAT THE FOLLOWING REASONS WERE RAISED. FIRST, THAT
AGENCIES LACK STATUTORY AUTHORITY TO PAY TRAVEL EXPENSES TO UNION
NEGOTIATORS; THAT NO FUNDS ARE CURRENTLY APPROPRIATED FOR THIS PURPOSE;
THE FACT THAT PAYMENT OF TRAVEL EXPENSES FOR THIS PURPOSE IS COSTLY;
RESPONDENT CITES COMPTROLLER GENERAL DECISIONS ISSUED BEFORE THE PASSAGE
OF THE STATUTE; THAT CONGRESSIONAL INTENT OF THE TERM "OFFICIAL TIME"
IN SECTION 7131 RUNS CONTRARY TO THE LEGISLATIVE HISTORY OF THAT
PROVISION; THE NON-AVAILABILITY OF TRAVEL EXPENSES FOR EMPLOYEES WHO
VOTE OR DONATE BLOOD; THAT AGENCIES WILL LOST CONTROL OF THEIR BUDGET
IF THEY MUST PAY TRAVEL EXPENSES; THAT THE UNION HAS ALREADY REIMBURSED
FROM ITS FUNDS THE EMPLOYEES INVOLVED FOR TRAVEL AND PER DIEM EXPENSES
INCURRED DURING THE PERIOD IN QUESTION; AND, FINALLY THAT ITS LEGAL
DUTY TO PAY TRAVEL EXPENSES DEPENDS UPON THE EXTENT TO WHICH THE UNION
"NEEDS" THE REIMBURSEMENT. /6/
IN ITS BRIEF, RESPONDENT CONTENDS THAT THE INTERPRETATION AND
GUIDANCE, SUPRA, IS WITHOUT SUPPORT IN LEGISLATIVE HISTORY AND IS
ILLEGAL; THAT RESPONDENT DOES NOT HAVE THE LEGAL AUTHORITY TO EXPEND
ITS APPROPRIATED FUNDS FOR THE PAYMENT OF TRAVEL EXPENSES AND PER DIEM
EXPENSES OF UNION NEGOTIATORS; AND THAT OFFICIAL TIME DOES NOT COVER
TRAVEL TO AND FROM BARGAINING SESSIONS. ITS ARGUMENTS ARE MERELY A
REITERATION OF THOSE PREVIOUSLY RAISED AND URGED THAT THE AUTHORITY'S
PREVIOUS POSITION SHOULD NOT BE FOLLOWED IN THIS MATTER. HOWEVER, THE
STATUTORY SCHEME DICTATES THAT THE ADMINISTRATION LAW JUDGE IS BOUND BY
THE DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY. ONCE AGAIN, I
RELY ON THE INTERPRETATION AND GUIDANCE, SUPRA, AND MORE SPECIFICALLY ON
THE DECISION OF JUDGE ARRIGO IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
SUPRA IN REJECTING RESPONDENT'S ARGUMENT. THERE JUDGE ARRIGO SAID:
TO ADDRESS ARGUMENTS WHICH ATTACK A STATUTORY INTERPRETATION MADE BY
THE AUTHORITY OR
QUESTION THE AUTHORITY'S POWER OF JUDGMENT IN TREATING A MATTER WOULD
SERVE NO USEFUL PURPOSE,
ESPECIALLY WHERE, AS HERE, THE AUTHORITY'S POSITION IS CLEAR AND
UNMISTAKABLE. ACCORDINGLY, I
REJECT RESPONDENT'S ARGUMENT CHALLENGING THE AUTHORITY'S DECISION IN
2 FLRA NO. 31 AS BEING
ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION AN BEYOND ITS
STATUTORY AUTHORITY.
I THEREFORE, AGREE WITH JUDGE ARRIGO AND FIND THAT THERE IS NO ROOM
FOR INNOVATION IN THIS MATTER.
FOR THESE SAME REASONS, I REJECT INTERVENOR'S CONTENTION THAT THE
AUTHORITY'S INTERPRETATION OF SECTION 7131(A) IS ERRONEOUS.
BASED ON THE FOREGOING, IT IS FOUND THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (8) OF THE STATUTE BY FAILING AND REFUSING TO PROVIDE
OFFICIAL TIME AND/OR PER DIEM AND TRAVEL EXPENSES TO UNION
REPRESENTATIVES OSLAGER, WHITENER AND GEIGER FOR TRAVEL EXPENSES AND
LEAVE INCURRED IN CONNECTION WITH NEGOTIATIONS FOR A NATIONAL AGREEMENT
AFTER JANUARY 11, 1979. I FURTHER FIND THAT RESPONDENT BY REFUSING TO
AUTHORIZE TRAVEL BY EMPLOYEES REPRESENTING THE UNION AT NEGOTIATIONS ON
A NATIONWIDE AGREEMENT PURSUANT TO A NATIONAL POLICY CIRCULATED TO
BUREAU HEADS AROUND FEBRUARY 4, 1980 VIOLATED SECTION 7116(A)(1) AND (5)
OF THE STATUTE.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8)
OF THE STATUTE, IT IS RECOMMENDED THAT THE AUTHORITY ADOPT THE FOLLOWING
ORDER. /7/
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R.SECTION
2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF
TREASURY, INTERNAL REVENUE SERVICE, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE JUDY OSLAGER, JEAN WHITENER AND
DONALD GEIGER OR ANY
AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATIONS OF A
COLLECTIVE BARGAINING AGREEMENT,
OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME
AS OCCURS DURING THE
EMPLOYEES' REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE
BE IN A WORK OR PAID LEAVE
STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES
SHALL BE PAID BY THE
EMPLOYING ACTIVITY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE UNION REPRESENTATIVE JEAN WHITENER OFFICIAL TIME FOR THE
PERFORMANCE OF HER
REPRESENTATIONAL DUTIES FROM JULY 1979 TO JULY 1980, AND MAKE HER
WHOLE FOR ANY ANNUAL LEAVE
SHE MAY HAVE UTILIZED ON SUCH DATES, AND PAY TO UNION REPRESENTATIVES
JUDY OSLAGER, JEAN
WHITENER AND DONALD GEIGER EMPLOYEE ENGAGED IN OFFICIAL AGENCY OR
ACTIVITY BUSINESS WOULD BE
ENTITLED.
(B) POST AT ITS VARIOUS OFFICES IN THE WASHINGTON, D.C., BROOKHAVEN,
NEW YORK, FRESNO,
CALIFORNIA AND ATLANTA, GEORGIA, SERVICE-CENTERS WHEREIN UNIT
EMPLOYEES ARE LOCATED, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX". COPIES OF SAID NOTICE, TO BE
FURNISHED BY THE
COMMISSIONER, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE,
SHALL BE POSTED BY
REPRESENTATIVES OF THE WASHINGTON, D.C., BROOKHAVEN, NEW YORK, AND
FRESNO, CALIFORNIA AND
ATLANTA, GEORGIA SERVICE-CENTERS IMMEDIATELY UPON RECEIPT THEREOF AND
BE MAINTAINED BY SUCH
REPRESENTATIVE FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES
WHERE NOTICE TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS
SHALL BE TAKEN TO INSURE
THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 19, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL AND REFUSE TO PROVIDE JUDY OSLAGER, JEAN WHITENER AND
DONALD GEIGER OR ANY OTHER AGENCY EMPLOYEE WHILE ENGAGED IN REPRESENTING
THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DURING NEGOTIATIONS OF A COLLECTIVE BARGAINING
AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY
TRAVEL TIME AS OCCURS DURING THE EMPLOYEES' REGULAR WORK HOURS AND WHEN
THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS OR
NECESSARY TRAVEL AND PER DIEM EXPENSES INCURRED WHILE SUCH EMPLOYEES ARE
ENGAGED IN NEGOTIATIONS FOR A NATIONWIDE AGREEMENT. WE WILL NOT IN ANY
LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN OR COERCE SUCH
EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. WE
WILL, UPON REQUEST, PROVIDE JEAN WHITENER OFFICIAL TIME FOR THE
PERFORMANCE OF HER REPRESENTATIONAL DUTIES AND MAKE HER WHOLE FOR ANY
LEAVE SHE MAY HAVE UTILIZED DURING THE PERIOD SHE WAS ENGAGED IN
NEGOTIATIONS OF THE NATIONAL AGREEMENT AS A REPRESENTATIVE OF NATIONAL
TREASURY EMPLOYEE UNION. WE WILL, UPON REQUEST PAY TO JUDY OSLAGER,
JEAN WHITENER AND DONALD GEIGER WHATEVER TRAVEL AND PER DIEM EXPENSES
FOR PERIODS THAT EACH PARTICIPATED IN NATIONAL NEGOTIATIONS AS
REPRESENTATIVES OF NATIONAL TREASURY EMPLOYEES UNION.
(AGENCY OR ACTIVITY)
DATED: . . . BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING, AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEE HAS ANY
QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE WITH ITS PROVISIONS,
THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR
RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS: 1133 15TH ST., N.W.,
ROOM 300, WASHINGTON, DC. 20005.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7116(A)(1) AND (8) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/2/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON
THE JUDGE'S ADDITIONAL FINDING THAT THE RESPONDENT ALSO VIOLATED SECTION
7116(A)(5) BY SUCH CONDUCT. SEE, E.G., STATE OF CALIFORNIA NATIONAL
GUARD, 8 FLRA NO. 11 (1982).
/3/ THE JUDGE'S RECOMMENDED AFFIRMATIVE REMEDY IS AMENDED TO CLARIFY
THAT ALL EMPLOYEES, INCLUDING BUT NOT LIMITED TO JUDY OSLAGER, JEAN
WHITENER AND DONALD GEIGER, WHO WERE DENIED OFFICIAL TIME FOR TRAVEL
AND/OR TRAVEL AND PER DIEM EXPENSES AS A RESULT OF THEIR PARTICIPATION
IN NEGOTIATING THE PARTIES' NATIONAL AGREEMENT AFTER JANUARY 11, 1979,
ARE ENTITLED THERETO. MOREOVER, INASMUCH AS THE UNIT HEREIN IS
NATIONWIDE IN SCOPE AND THE UNION'S REPRESENTATIVES AT THE NEGOTIATING
SESSIONS WERE PARTICIPATING ON BEHALF OF THE ENTIRE UNIT, THE AUTHORITY
SHALL FURTHER MODIFY THE JUDGE'S RECOMMENDED ORDER TO REQUIRE NOTICES TO
BE POSTED AT ALL OF THE RESPONDENT'S FACILITIES WHERE BARGAINING UNIT
EMPLOYEES ARE LOCATED.
/4/ AT THE HEARING, IT BECAME CLEAR THAT THE REFUSAL TO PAY TRAVEL
VOUCHERS SUBMITTED AROUND MARCH 20, 1980 WAS FOR THIS REASON ALONE AND
NOT BECAUSE OF ANY DEFICIENCIES IN THE VOUCHERS.
/5/ SECTION 7131(A) PROVIDES AS FOLLOWS:
OFFICIAL TIME
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER
SHALL BE AUTHORIZED OFFICIAL TIME FOR SUCH PURPOSES, INCLUDING
ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME THE EMPLOYEE OTHERWISE
WOULD BE IN A DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF
INDIVIDUALS DESIGNATED AS REPRESENTING THE AGENCY FOR SUCH PURPOSES.
/6/ ALTHOUGH I AGREE WITH THE GENERAL COUNSEL AND THE CHARGING PARTY
THAT CROSS-EXAMINATION OF MR. GEIGER EXCEEDED THE SCOPE OF PREVIOUS
RULINGS MADE BY ME AS TO RELEVANCY I DO NOT DEEM IT NECESSARY TO
PHYSICALLY STRIKE THIS CROSS-EXAMINATION FROM THE RECORD.
/7/ THE UNION'S UNOPPOSED MOTION TO AMEND THE TRANSCRIPT IN THIS
MATTER IS GRANTED.